Biden Administration Releases Spring 2022 Regulatory Agenda

NEWS

Biden Administration Releases Spring 2022 Regulatory Agenda

June 29, 2022

On June 21, the Biden administration released its Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions. The agenda lists upcoming rulemakings and other regulatory actions from each agency that the administration expects to publish this year and into 2023. ABC has prepared a summary of the actions of interest to ABC members by agency.

U.S. Department of Labor

Occupational Safety and Health Administration

On March 30, 2022, OSHA issued a proposed rule to restore provisions of the Obama administration’s 2016 Improve Tracking of Workplace Injuries and Illnesses final rule. Under the new proposal, covered establishments with 100 or more employees in certain high-hazard industries—including construction—will be required to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA once a year. In addition, the U.S. Department of Labor plans to share the information on a public website (although indicating it will remove individuals’ names and contact information). ABC plans to submit comments opposing the proposal by the deadline of June 30. According to the regulatory agenda, OSHA intends to issue a final rule in December 2022.

On Oct. 27, 2021, OSHA issued an advance notice of proposed rulemaking on heat injury and illness prevention in indoor and outdoor settings, which began the process to consider a heat-specific workplace rule. On Jan. 26, 2022, ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments on the ANPRM. CISC members feel strongly that a regulatory approach—if adopted—must be simple and should integrate the key concepts of “water, rest, shade.” According to the regulatory agenda, the agency intends to analyze the comments from the ANPRM beginning in June 2022.

On May 17, 2022, ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments to OSHA voicing compliance and cost concerns on the proposed rule on powered industrial trucks design standard update. According to the regulatory agenda, OSHA intends to analyze the comments from the NPRM beginning in July 2022.

The agency is expected to issue a proposed rule clarifying the requirements for the fit of personal protective equipment in construction in September 2022.

In May 2023, OSHA intends to issue a proposed rule on infectious diseases and examine regulatory alternatives for control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease. The agency listed several workplaces where these control measures might be necessary, including health care, emergency response, correctional facilities, homeless shelters, drug treatment programs and other occupational settings where employees can be at increased risk of exposure.

Wage and Hour Division

In December 2022, the DOL’s Wage and Hour Division is expected to issue a final rule “purporting” to update and modernize the regulations implementing the Davis-Bacon Act and Related Acts. On May 17, ABC filed nearly 70 pages of comments opposing the proposed rule, which would reverse prior reforms, expand Davis-Bacon requirements to new industries and activities and increase administrative burdens on federal contractors. ABC also surveyed contractor members to gather insight on the potentially harmful impacts of this proposal and utilized the data gathered in its comments.

In October 2022, the WHD is expected to issue a proposed rule updating the “overtime” rule. WHD is reviewing the regulations that implement the exemption of bona fide executive, administrative and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements. On May 11, ABC, as a steering committee member of the Partnership to Protect Workplace Opportunity, as well as 92 other organizations, sent a letter to Secretary of Labor Marty Walsh urging him to abandon or at least postpone issuing the announced proposed rulemaking.

For more information on upcoming DOL rulemakings, see the department’s Spring 2022 Regulatory Agenda.

Federal Acquisition Regulation Council

The FAR is expected to issue a proposed rule by the end of June 2022, with a public comment deadline of August 2022, to implement Executive Order 14063. ABC slammed the EO, which directs the FAR Council to mandate the use of project labor agreements on large-scale construction projects with a total estimated value of $35 million or more. On April 6, ABC sent the White House a letter with more than 1,200 signatures from member companies and chapters strongly opposing the EO and other efforts by the Biden administration to push PLAs on federally assisted projects. ABC is currently evaluating legal options to challenge the EO policy and individual PLAs on federal construction contracts.

National Labor Relations Board

The NLRB intends to “engage in rulemaking on the standard for determining whether two employers, as defined in Section 2(2) of the National Labor Relations Act, are a joint employer under the Act” and issue the proposal in July 2022. It is expected the board will amend or rescind the 2020 ABC-supported, NLRB-issued joint employer final rule, which reinstates the traditional joint-employer standard and provides clear criteria for companies to apply when determining joint-employer status.

The board will also be “revising the representation election procedures located at 29 CFR part 103, with a focus on the amendments issued on April 1, 2020” and is expected to issue a proposed rule in Sept. 2022. On April 1, 2020, the Trump NLRB issued the final election protection rule, which amends the board’s rules and regulations on blocking charges, the voluntary recognition bar and the proof of majority support specific to the construction industry. In Jan. 2020, ABC submitted comments in support of the board’s proposal.

Additional Rules to Monitor Include:

Environmental Protection Agency

Council on Environmental Quality

More information on these and other rulemakings can be found in the Spring 2022 Regulatory Agenda. ABC will continue to provide updates on these and other rulemakings in Newsline.